Citation Nr: 1204442
Decision Date: 02/06/12 Archive Date: 02/16/12
DOCKET NO. 07-28 232 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Denver, Colorado
THE ISSUES
1. Whether there was clear and unmistakable error (CUE) in the RO's May 30, 2002 decision that assigned an effective date of August 31, 2000 for the grant of entitlement to service connection for post traumatic stress disorder (PTSD).
2. Whether there was CUE in the failure of the RO's May 30, 2002 rating decision to adjudicate the issue of entitlement to service connection for alcohol abuse secondary to PTSD.
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter, Attorney at Law
ATTORNEY FOR THE BOARD
J. Hager, Counsel
INTRODUCTION
The Veteran served on active duty from October 1966 to September 1969.
These matters initially came before the Board of Veterans' Appeals (the Board) on appeal from an April 2006 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO determined that there was no CUE in its prior, May 2002 rating decision assigned an effective date of August 31, 2000 for the grant of entitlement to service connection for PTSD and that there was no CUE in its failure in the May 2002 rating decision to adjudicate the issue of entitlement to service connection for alcohol abuse secondary to PTSD in that same decision.
In July 2009, the Board dismissed the CUE motions without prejudice. In a June 2011 memorandum decision, the Court reversed the Board's dismissals and instructed the Board to adjudicate the CUE motions on the merits. The Board will do so herein.
FINDINGS OF FACT
1. The Veteran filed his original claim for entitlement to service connection for PTSD in October 1993.
2. In an August 1994 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran did not appeal this decision.
3. On August 31, 2000, the Veteran submitted an application to reopen his claim for entitlement to service connection for PTSD.
4. In a May 2002 rating decision, the RO granted entitlement to service connection for PTSD with major depressive disorder, effective August 31, 2000. The RO did not adjudicate a claim for entitlement to service connection for alcohol abuse secondary to PTSD or an application to reopen a previously denied claim for entitlement to service connection for alcohol abuse.
5. The RO did not clearly and unmistakably err in its determination that the appropriate effective date was August 31, 2000, as that was the date of the application to reopen, and the basis for reopening was not that there was new and material evidence consisting of a supplemental report from the service department or service department records.
6. The issue of entitlement to service connection for alcohol abuse secondary to PTSD was not reasonably raised by the evidence of record, and any error in not adjudicating a claim or application to reopen on this issue was not outcome determinative.
CONCLUSIONS OF LAW
1. There was no CUE in the RO's May 2002 rating decision assigning August 30, 2000 as the effective date of the grant of entitlement to service connection for PTSD. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. §§ 3.104(a), 3.105(a) (2011), 3.156(c), 3.400(q)(2) (2001).
2. There was no CUE in the RO's failure to address the issue of entitlement to service connection for alcohol abuse secondary to PTSD in its May 2002 rating decision. 38 U.S.C.A. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Clams Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). However, the VCAA is inapplicable to CUE motions, and therefore need not be further discussed in this decision. Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc).
Unappealed RO decisions are final, and a final RO decision is not subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of CUE, as provided in 38 C.F.R. § 3.105(a). See 38 C.F.R. § 3.104(a). If the evidence establishes CUE, the prior decision will be reversed or amended; finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id.
In determining whether a prior determination involves CUE, the Court has established a three-prong test. The three prongs are: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than simple disagreement on how the facts were weighed or evaluated), or the statutory/regulatory provisions extant at that time were not correctly applied; (2) the error must be 'undebatable' and of the sort which, if it had not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313- 14 (1992) (en banc)). CUE is a very specific and rare kind of "error." It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Even when the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be ipso facto clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313-14). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). In addition, an assertion of CUE is a motion or a request, rather than a claim. See Hillyard v. Shinseki, 24 Vet. App. 343, 355-356 (2011) (citing Rice v. Shinseki, 22 Vet. App. 447, 451 (2009) ("Motions alleging clear and unmistakable error . . . in a prior decision have also often been referred to as 'claims'").
The Board notes that a CUE motion is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked the presumption becomes even stronger. Fugo, 6 Vet. App. at 43-44. Therefore, a movant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991).
In this case, the Veteran alleges CUE in the RO's May 2002 rating decision assigning an effective date of August 31, 2000 for the grant of entitlement to service connection for PTSD. This effective date was assigned because it was the date of the Veteran's application to reopen the claim for entitlement to service connection for PTSD that had previously been denied in August 1994. In the case of an application to reopen a previously denied claim for entitlement to service connection, the applicable statute provides that the effective date is to be "fixed in accordance with the facts found," but cannot be earlier than the date of receipt of the claim for the benefit that was granted. 38 U.S.C.A. § 5110(a). The courts have interpreted the statute as generally prohibiting an effective date assigned in connection with the grant of an application to reopen prior to the date of the application to reopen. See Leonard v. Nicholson, 405 F.3d 1333, 1336 (citing Sears v. Principi, 349 F.3d 1326, 1332 (Fed. Cir. 2003)). In this case, the Veteran was notified of the August 1994 decision denying entitlement to service connection for PTSD in a letter later that month, and neither appealed nor submitted new and material evidence within the one year appeal period. Therefore, this denial became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. There is no argument that the Veteran submitted a new claim for entitlement to service connection for PTSD or application to reopen this claim prior to the August 31, 2000 application to reopen. Consequently, the RO's decision to assign August 31, 2000 as the effective date is in accordance with the general rule and not clearly and unmistakably erroneous on this basis.
Significantly, however, there is an exception to the general rule, which is implicated by the facts of this case. At the time of the RO's May 2002 rating decision and the time of the August 2000 application to reopen that it granted, 38 C.F.R. § 3.156(c) provided that, where the new and material evidence submitted by a Veteran in support of an application to reopen consist of "a supplemental report from the service department," the former decision would be reconsidered by the agency of original jurisdiction. See 38 C.F.R. § 3.156(c) (2001). Similarly, the effective date regulation at the time of the August 2000 application to reopen and RO's May 2002 rating decision, 38 C.F.R. § 3.400 (2001), provided that where an award of benefits is based on new and material evidence that consists of "[s]ervice department records," the effective date is "[t]o agree with evaluation (since it is considered these records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later. . . ." 38 C.F.R. § 3.400(q)(2) (2001). The Veteran, through his attorney, argues that these regulations were applicable to his case and that the RO's failure to apply them in assigning the effective date for the grant of entitlement to service connection for PTSD constituted CUE. Specifically, he contends that these regulations are applicable because the May 2002 rating decision granted service connection for PTSD based upon receipt of unit histories of his battalion. He argues that the only evidence not available at the time of the 1994 rating decision was evidence that he engaged in combat while in Vietnam, but the unit histories verified this and provided the basis of the grant of service connection for PTSD. Thus, he argues, the decision to assign an effective date of August 31, 2000 based on the date of the application to reopen, rather than October 15, 1993, the date of the initial claim, constituted CUE.
Initially, the Board finds, consistent with the Court's memorandum decision, that the Veteran's allegations, summarized above, are sufficiently clear and specific to require the Board to address the CUE motion on the merits. See Fugo, 6 Vet. App. at 43 ("there must be some degree of specificity as to what the alleged error is. . . "). However, the Board will deny the motion on the merits, for the following reasons.
In October 1993, the Veteran submitted a claim for entitlement to service connection for PTSD, alcoholism, drug abuse, depression, stress, anger, total disability based on individual unemployability (TDIU) and an ulcer. In response, the RO sent him a June 1994 letter requesting information in connection with these claims. With regard to the claim for entitlement to service connection for PTSD, the RO specifically informed the Veteran that, in order for it to determine if he had a well grounded claim, he should submit certain evidence. The evidence described by the RO included a complete detailed description of the specific traumatic incidents, including dates and places of the incidents and the unit to which the Veteran was assigned at the time. The Veteran did not submit a specific response to this letter.
On the June 1994 VA psychiatric examination, the Veteran reported he had nightmares about his experiences in Vietnam. The Veteran reported that while in Vietnam he had numerous experiences of the convoy coming under fire and trucks being hit. He further witnessed a lot of burned bodies and villages, and watched children call out for help. The children were hit by some type of mortar fire but were refused medical help because they were Vietnamese. The diagnoses included PTSD, mild to moderate, chronic was also diagnosed.
In an August 1994 rating decision, service connection was denied for a psychiatric disability to include depression, anger, stress and PTSD. Service connection for PTSD was denied because the Veteran's claimed stressor was not shown to be life threatening or outside the range of human experience. The RO noted that the incident the appellant claims as his stressor, the event involving the children, was not verifiable and was not life threatening to the Veteran.
In August 2000, the Veteran submitted a request to reopen his claim for service connection for PTSD. The RO sent a September 2000 letter with an enclosed PTSD questionnaire, and the Veteran completed and returned it, reporting that he served with Company B, 23rd Supply and Transport Battalion (23rd S&T Bn) and that in November 1968 he witnessed Vietnamese children killed and injured in non-battle. Based on this response, the RO sent a November 2000 request to the Center for Unit Records and Research (CURR) for information relating the Veteran's claimed stressors. In September 2001, CURR provided a unit history of the Veteran's service unit, at the request of the RO. Records were provided for the 23rd Supply and Transport Battalion (23rd S&T Bn) for the period of December 1967 to September 1969 and extracts from the Operational Reports-Lessons Learned (OR-LL's) for the period August 1968 to October 1969. The OR-LL's document several attacks in Chu Lai, some of which resulted in causalities.
On the May 2002 VA examination, the Veteran stated that the worst thing that happened to him in Vietnam was when he witnessed the severe wounding of 10 to 11 children by enemy fire and the refusal to treat them because they were Vietnamese. The diagnoses were chronic PTSD, major depressive disorder secondary to PTSD and alcohol dependence in remission. The VA examiner reported that in his mind the appellant had a couple of stressors that would qualify for PTSD, implicitly including the one involving the children.
In its May 2002 rating decision, the RO quoted from the May 2002 VA examination report including the Veteran's recounting of the stressor involving the children as well as the CURR unit history and OR-LLs. As noted, the RO granted entitlement to service connection and assigned an effective date of August 31, 2000, based on the date of the application to reopen.
The Board notes that the Veteran did not timely challenge the assigned effective date, and thus may not raise a freestanding claim arguing for an effective date earlier than August 31, 2000. Rudd v. Nicholson, 20 Vet. App. 296 (2006). However, it is proper to seek an earlier effective date through via a CUE motion, as a CUE motion may be made with respect to any aspect of a prior decision, including the assignment of an effective date. 38 U.S.C.A. § 5109A(a). In doing so, he argues that it was CUE for the RO not to apply the version of 38 C.F.R. §§ 3.156(c) and 3.400(q)(2) at that time because the unit histories and OR-LLs were precisely the type of "supplemental report from the service department" or "service department records" referred to in this regulations as providing a basis for an effective date earlier than the application to reopen, specifically, the date of receipt of the prior claim. The Board rejects this argument, on the merits, for the following reason. As noted by the RO in the April 2006 decision on appeal herein, the new and material evidence in this case was not the "supplemental report from the service department" or "service department records," but, rather, the Veteran's own stressor statement. This is because, at the time of the prior denial, the Veteran had not provided information specific enough to request verification of his stressor. As noted, he did not reply to the RO's specific request for information relating to his stressor in connection with his original claim. Consequently, the record before the RO at that time included neither specific dates, locations, or unit of assignment relating to the stressor based on which entitlement to service connection was ultimately granted, or a request from the RO for such information from the predecessor organization to CURR. Significantly, the evidence of the dates, location, and unit of assignment relating to the stressor were submitted by the Veteran after the RO's August 1994 denial, and provided the basis for the RO to request verification from CURR, which was provided in the form of unit history and OR-LLs. As it was the Veteran's October 2000 stressor statement and questionnaire responses that were the new and material evidence on which the application to reopen was granted, 38 C.F.R. §§ 3.156(c) and 3.400(q)(2) (2001) were not for application in the May 2002 RO decision assigning an effective date for entitlement to service connection for PTSD.
The Board also notes that, even if it were established that it was possible for the RO to apply those regulations in assigning an effective date for the grant of entitlement to service connection for PTSD in its May 2002 decision, this would not be a basis for a finding of CUE. Such a finding requires an error in law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. Fugo, 6 Vet. App. at 43-44. The Veteran has not met that heavy burden here. As shown above, there is a plausible basis for not applying those regulations, specifically, that the CURR records were not the new and material evidence on which reopening was based, but, rather, the Veteran's statements were the new and material evidence. Consequently, CUE in the May 2002 decision assigning the August 31, 2000 effective date based on the date of the application to reopen was not clearly and unmistakably erroneous. The CUE motion with regard to this decision must therefore be denied.
The Board notes the decision of the Court in Vigil v. Peake, 22 Vet. App. 63 (2008). There, the Court applied VA's "clarifying statements" made as part of its revision of 38 C.F.R. § 3.156(c) to the former version of that regulation. Id. at 65 (citing, inter alia, New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005). In so doing, the Court found that the Board had erred in rejecting the application of 38 C.F.R. § 3.156(c) because the service records submitted had not been misplaced or were generated by CURR's predecessor upon VA's request. Id. at 66. However, the Board's decision in this case is not based on the premise that the CURR records were not of the type contemplated in the regulation, either because not misplaced or generated on behalf of an active and pending claim. Rather, the Board's decision in this case is based on the fact that it was not the CURR records that were the new and material evidence, but, rather, the Veteran's statements. Consequently, Vigil is inapplicable.
In his other CUE motion, he Veteran argues that the RO committed CUE in its May 2002 decision by not adjudicating a claim for entitlement to service connection for alcohol abuse secondary to PTSD. Again, pursuant to the Court's memorandum decision, the Board finds that the Veteran has met the specificity requirement and this CUE motion must be adjudicated on the merits.
In addressing this question, however, the Board must first determine whether the failure to adjudicate a claim can be the proper subject of a CUE motion. The Court and the Federal Circuit appear to answer this question differently. In DiCarlo v. Nicholson, 20 Vet. App. 52, 56 (2006), the Court held that "the appropriate procedure for a claimant to press a claim believed to be unadjudicated (and for which there is no final decision that arguably failed to consider the claim) is to pursue a resolution of the original claim, e.g., seek issuance of a final RO decision with proper notification of appellate rights and initiate an NOD." Id. (citing 38 U.S.C.A. §§ 5104, 7105). According to the Court, if VA then fails to process the claim, the claimant can then file a petition with the Court challenging the VA's refusal to act. Id. at 56-7 (citing Costanza v. West, 12 Vet. App. 133, 134 (1999)). The Court has recently reaffirmed this principle. See Evans v. Shinseki, 25 Vet. App. 7, 18 (2011) ("The Court notes that it is not apparent from the record that the appellant ever filed an NOD as to these claims after the RO decided them. To the extent that the appellant believes he has a pending appeal as to these claims, he should raise this issue to VA. If the Board determines that no timely NOD was filed or if it denies the claims on the merits, the appellant can appeal by filing a Notice of Appeal with the Court within 120 days of the Board's decision") (citing DiCarlo, 20 Vet. App. at 55). However, in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006); Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005), the Federal Circuit held that the appropriate manner in which to challenge the failure to adjudicate a claim is via a CUE motion. Deshotel, 457 F.3d at 1262; Andrews, 421 F.3d at 1281. The Court appeared to resolve this conflict in Ingram v. Nicholson, 21 Vet. App. 232, 238-39 (2007), by holding that, in certain circumstances, such as where is a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated, a claim could be deemed to have been implicitly denied and then challenged by a CUE motion. See generally John Fussell & Jonathan Hager, The Evolution of the Pending Claim Doctrine, 2 Veterans L. Rev. 145, 164-169 (2010). In this case, it cannot be said that a claim for entitlement to service connection for alcohol abuse secondary to PTSD was implicitly denied in the RO's May 2002 decision, because the Veteran did not reference his alcohol abuse in his August 2000 application to reopen and the RO did not reference the Veteran's alcoholism in its May 2002 decision, other than to note the diagnosis of alcohol dependence in remission on the May 2002 VA examination. Thus, there was no specific claim for entitlement to service connection for alcohol abuse, no relationship between the PTSD and alcoholism noted, and no specific allusion to a claim for entitlement to service connection for alcohol abuse. It therefore cannot be said that a claim for entitlement to service connection for alcohol abuse was implicitly denied in the May 2002 decision. See Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (citing Adams v. Shinseki, 568 F.3d 956, 963-64 (Fed. Cir. 2009)) (discussing factors to be considered in applying "implicit denial" rule).
However, even assuming that a CUE motion is the appropriate vehicle to challenge the RO's failure to adjudicate a claim for entitlement to service connection for PTSD in its May 2002 decision, the Board finds that there was no CUE in such a failure. The Veteran argues that in its May 2002 decision, the RO failed to properly apply 38 C.F.R. § 3.310(a) (2001), which provided for entitlement to service connection for a disability secondary to a service connected disability. Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 91, prohibits, effective for claims such as this one filed after October 31, 1990, payment of compensation for a disability that is a result of a veteran's own alcohol or drug abuse. Moreover, Section 8052 also amended 38 U.S.C.A. § 105(a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(m), 3.301(d). However, the Federal Circuit has held that there can be service connection for compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, his or her service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). The Federal Circuit indicated that veterans could only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id. at 1381. The Court further stated that such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id.
The Board finds that the RO did not misapply the law in not adjudicating a claim for entitlement to service connection for alcohol abuse secondary to PTSD or an application to reopen the previously denied claim for entitlement to service connection for alcohol abuse in its May 2002 decision. While all pleadings must thus be read in a liberal manner, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). At the time of the May 2002 decision, there was simply no evidentiary support for the theory that the Veteran's alcohol abuse was secondary to his PTSD or for a claim based on this theory.
On an April 1985 examination, a history of alcohol problems was noted. In his October 1993 claim discussed above, in addition to claiming entitlement to service connection for PTSD, the Veteran claimed entitlement to service connection for alcoholism and drug abuse. On a June 1994 VA examination, it was reported that the Veteran was unemployed but there did not seem to be any physical reason why the Veteran could not work. It was noted that the Veteran had been drinking heavily off and on since 1969, but that when his stomach ulcer started acting up he quit drinking hard liquor and cut back from all drinking. It was noted that the Veteran quit work as a barber 15 years previously because of alcoholism but worked as a part time laborer two or three days at a time. The was diagnosed with medical complications of alcoholism in addition to PTSD. The examiner noted that there was no medical reason why the Veteran was not employable. In addition, on the June 1994 VA psychiatric examination discussed above, the Veteran acknowledged that he had a severe alcohol problem and that he had this problem for at least 25 years. The Veteran reported that he drank heavily during his time in service. He asserted that he drank everyday while in Germany in order to try to cope with the emotional stress. The Veteran reported that post service, within the first six years after separation, he worked many different kinds of jobs but was drinking heavily during this time. He drank from first thing in the morning until he went to bed at night. It was noted that the Veteran had a strong family history of alcoholism. The primary diagnosis was alcohol dependence, chronic, severe (in addition to the diagnosis of PTSD, mild to moderate, chronic noted above). The examiner noted that the primary factor that impairs the appellant's employability is his alcohol dependence. The examiner noted that he thought the appellant could achieve sobriety and be able to work in a supervised situation that required minimal interaction with the public. The examiner noted that the appellant had minimal or no motivation to address the alcohol issue at that time.
In the August 1994 rating decision discussed above, entitlement to service connection for alcohol and drug abuse was denied (in addition to entitlement to service connection for PTSD) because such was considered willful misconduct and under 38 U.S.C.A. § 105, and service connection cannot be granted for disabilities which are the result of the veteran's own willful misconduct. As noted, the Veteran was issued notice of the denial in August 1994. He did not appeal or submit new and material evidence within the one year appeal period, and the decision therefore became final.
In his August 2000 application to reopen his claim for entitlement to service connection for PTSD, the Veteran did not make any reference to alcoholism. On the May 2002 VA examination, alcohol dependence in remission was one of the diagnoses.
The above evidence reflects that the evidence before the RO at the time of the May 2002 decision granting entitlement to service connection for PTSD did not raise the issue of entitlement to service connection for alcohol abuse secondary to this disability such that the RO was required to adjudicate an application to reopen the RO's prior, August 1994 denial of the claim for entitlement to service connection for alcohol abuse or to adjudicate such a claim de novo. On the contrary, there was evidence in the claims file that the Veteran's alcoholism preceded his diagnosis of PTSD, and that his alcohol was in remission at the time of the most recent diagnosis of PTSD, on the May 2002 VA examination. The RO was thus justified in concluding that a claim for entitlement to service connection for alcohol abuse secondary to PTSD, or an application to reopen the previously denied claim for entitlement to service connection for alcohol abuse, did not need to be addressed. At the least, it cannot be said to that the RO's failure to adjudicate such a claim was the kind of error in fact or law that compels the conclusion, to which reasonable minds could not differ, that it would have granted such a claim even if it had adjudicated it. Fugo, 6 Vet. App. at 43-44.
For the foregoing reasons, even assuming that a CUE motion is the proper vehicle for challenging the RO's failure to adjudicate a claim for entitlement to service connection for alcohol abuse secondary to PTSD in its May 2002 decision granting entitlement to service connection for PTSD, the RO did not clearly and unmistakably err by not adjudicating such a claim or application to reopen the previously denied claim for entitlement to service connection for alcohol abuse. In addition, to the extent that the Veteran argues that the granting of the CUE motion as to the assignment of the effective date for the grant of entitlement to service connection for PTSD raises the issue of entitlement for secondary service connection for alcohol abuse and VA must consider this condition as part of the retroactive evaluation, the Board's denial of that CUE motion requires the rejection of this contention. Consequently, the CUE motion as to the RO's failure to consider entitlement to service connection for alcohol abuse secondary to PTSD in its May 2002 decision must be denied.
With regard to both CUE motions, the Board notes that the benefit-of-the-doubt doctrine is inapplicable. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE motion because the nature of such a motion is that it involve more than a disagreement as to how the facts were weighed or evaluated).
ORDER
The CUE motion as to the RO's May 30, 2002 decision that assigned an effective date of August 31, 2000 for the grant of entitlement to service connection for PTSD is denied on the merits.
The motion claiming CUE in the failure of the RO's May 30, 2002 rating decision to adjudicate the issue of entitlement to service connection for alcohol abuse secondary to PTSD is denied on the merits.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs